O'Brien v. Haynes

Citations

• 61 Ill. 494

Syllabus

<p>1. Process—alias writ of replevin. Where the defendant in an action of replevin is not served, or is improperly served, the suit must be continued and a second writ issued the same as in any other form of action.</p> <p>2. Same—service. Where a writ or summons is served after the return day, the service will be a nullity, and will not give the court jurisdiction of the person of the defendant.</p> <p>3. Appearance—effect on defective service. Where the record shows the appearance of a defendant bjr attorney, and tire filing of a plea to the merits, and the attorney was employed in the case at a former term, the defendant will be concluded by the action of his attorney, and all defects and irregularities in the service will be cured.</p> <p>4. Same—new trial. The defendant in this case was served after the return day of the summons, and retained an attorney to defend. A new summons was ordered and the cause continued. The attorney, at the next term, filed a plea and proceeded to trial. After judgment, defendant entered a motion for a new trial, and showed, by affidavit, that he had not been served with the alias summons, and that he had a defense, detailing facts, which, if proved, would have presented a conflict of evidence. The court overruled the motion: Held, that the court did not err.</p>